FOIA Update: Space Shuttle Privacy Appeal Decided

January 1, 1990

FOIA Update Vol. XI, No. 3 1990

Space Shuttle Privacy Appeal Decided

In a sharply divided decision, the full D.C. Circuit Court of Appeals ruled on December 7 that NASA's audiotape of the space shuttle Challenger disaster can qualify for privacy protection under Exemption 6 of the Freedom of Information Act.

By a 6-5 vote, the D.C. Circuit in New York Times Co. v. NASA, No. 87-5244, overturned previous decisions in the case on whether such a record can meet the "similar files" threshold requirement of Exemption 6. It ruled that because the tape of the flight's brief journey contains the identifiable voices of the Challenger astronauts, it does satisfy Exemption 6's threshold requirement -- thereby clearing the way for consideration of the personal privacy concerns of the astronauts' surviving family members.

"Particular Individual" Standard

Writing for the majority of the D.C. Circuit, Circuit Judge Douglas H. Ginsburg emphasized that under the Supreme Court's 1982 decision in Department of State v. Washington Post Co., "the threshold for application of Exemption 6 is crossed if the information merely 'applies to a particular individual.'" Characterizing this standard as a "minimal" one, he found it satisfied by the information about the individual astronauts that could be gleaned from the audiotape.

In so doing, Judge Ginsburg distinguished between the information contained in a transcript of the audiotape, which NASA released to the public soon after the tragedy, and the information that would be revealed through public disclosure of the tape itself. He observed that "information is not conveyed by words alone. The information recorded through the capture of a person's voice is distinct and in addition to the information contained in the words themselves."

Based upon this view of the nature of a voice recording, Judge Ginsburg reasoned that it does not necessarily matter whether such a record contains information about the personal lives of the individuals involved. In this case, in fact, it was beyond dispute that the tape contains no such personal details about any of the seven Challenger astronauts. The presence of a special characteristic of the tape, though, the astronauts' "voice inflections," was central to the court's decision.

Focusing on this characteristic, Judge Ginsburg stressed the fact that the audiotape's disclosure "would reveal the sound and inflection of the crew's voices during the last seconds of their lives," the very basis for NASA's privacy concern. "Therefore," he concluded, "the tape contains personal information."

No "Author/Subject" Distinction

In reaching this conclusion for the majority of the court, Judge Ginsburg specifically rejected the idea that some distinction should be drawn, for Exemption 6 purposes, between the "author" of a record and the record's "subject." Such a distinction would have precluded any possible privacy protection in this case based upon the astronauts' roles as "makers" or "authors" of the audiotape.

While recognizing that "it is most unusual for a government [record] to yield up any meaningful information about its author," Judge Ginsburg declared that an individual's "authorship" of a record makes no such difference: "An author may be a 'particular individual,' and as such may have a privacy interest cognizable under Exemption 6."

The five dissenting judges strongly disagreed on this analytical point. In a dissent authored by Circuit Judge Harry T. Edwards, they took the view that an Exemption 6 record should contain personal information "about the subject (not just the author or maker)" of that record.

The case now returns on remand to the district court level, where District Court Judge Norma Holloway Johnson will be required to weigh the personal privacy interests of the astronauts' families against the public interest in disclosure, under Exemption 6's "balancing" process, to determine the exemption's ultimate applicability.

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This issue of FOIA Update (pp. 3-12) contains the second installment of the "Department of Justice Report on 'Electronic Record' Issues under the FOIA."